Case: 17-51033      Document: 00514541576         Page: 1    Date Filed: 07/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 17-51033                               July 5, 2018
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GABRIEL GONZALEZ-MEDINA,

                                                 Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1660-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Gabriel Gonzalez-Medina appeals the 30-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry, in
violation of 8 U.S.C. § 1326(a).        He argues that his sentence violates due
process because it exceeds the statutory maximum sentence allowed by
§ 1326(a). Specifically, Gonzalez-Medina argues that a prior conviction that



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-51033    Document: 00514541576    Page: 2   Date Filed: 07/05/2018


                                No. 17-51033


enhances a sentence under § 1326(b) must be alleged in the indictment and
proved to a jury. He correctly concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 

(1998). See United States v.
Wallace, 

, 497 (5th Cir. 2014); United States v. Pineda-Arrellano,

, 625-26 (5th Cir. 2007). However, he seeks to preserve the issue
for possible Supreme Court review.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Because Gonzalez-Medina’s argument is
foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v.
Davis, 

, 1162 (5th Cir. 1969). Accordingly, the Government’s
motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The Government’s alternative motion for an extension of time to
file a brief is DENIED.




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